Most voters think they elect the President and Vice President on General Election Day. This year, General Election Day is November 6, 2012. But, the truth be told, voters actually only elect Presidential Electors on General Election Day. Each state (and the District of Columbia) gets the total number of their Congressional delegation (both U.S. House and Senate) as Electors. For Georgia, this means 16 Electors – 14 (reflecting the total number of its Representatives) plus 2 (reflecting its 2 U.S. Senators). There are a total of 538 Electors (435 reflecting the total number of Representatives, plus 100 reflecting the number of Senators, plus 3 for the District of Columbia.

Presidential Electors do not actually meet to cast their ballots until the Monday after the second Wednesday of December, which this year is December 17. Each state’s Electors meet in that state’s capital. An Elector casts a ballot for the President and separately for the Vice President. The votes are not counted at that time. Instead, the Electoral Votes are not counted for two months, until January 6 following the Presidential Election. Congress convenes in a joint session to count the Electoral Votes.

To win, a candidate for President must receive 270 Electoral Votes. If no candidate gets a majority of the Electoral College, there is no runoff. Instead, under the Constitution, the United States House of Representatives must then meet to elect the President from among the top three vote-getters. Instead of each Representative getting one vote, each state gets one vote. The Representatives from that state decide by majority rule how its single vote will be cast. The United States House of Representatives has actually picked the President of the United States twice – once in 1801, and then again in 1825.

If no candidate for Vice President receives a majority, then the Senate must pick from among the top two candidates. In the Senate, however, each Senator gets one vote, and 51 votes are required for election.

There have been three Presidential Elections when the winner of the popular vote on General Election Day did not win the Electoral Vote. These occurred in 1876, 1888, and most recently, in 2000.

There is currently a proposal to lock in the results of the Electoral College so that the winner of the popular vote wins the election. Under this proposal, states with total Electors of 270 or more agree to require their Electors to vote for the winner of the popular vote no matter which candidate actually wins each state. No one knows whether such an agreement among the states would be Constitutional. The risks are pretty obvious.

If a group of states could decide to direct their Electors to vote for a candidate regardless of the outcome in each state, then those same states (with 270 or more Electors) could just pick a candidate. The rest of the country would have little protection from such an arrangement. Already, 8 states have joined this compact among states.

Absent some Electoral College monkey business, candidates must win 270 Electoral Votes the old fashioned way – state by state. For the most part, the Democratic Nominee starts the contest with around 180 Electoral Votes and the Republican Nominee starts the contest with around 180 Electoral Votes. For Democrats, California (55), New York (29), and Illinois (20) along with most of the Northeast are safe building blocks. For Republicans, Texas (38) along with the rest of the deep South and through the heart of the country from Texas to North Dakota to Idaho are safe building blocks. Outside of these deep blue Northeast and west coast states, on the one hand, and the deep red southern and Midwestern states, the 2012 Presidential contest really comes down to the perennial battleground states together with a handful of contested states. For battleground states, most seasoned political insiders easily recognize Florida, Ohio, Pennsylvania, Iowa, New Mexico and Wisconsin. They have been at play in all of the recent elections.

The contested states in 2012 will be Minnesota, Michigan, Indiana, Virginia, North Carolina, New Mexico, Nevada, and Colorado.

In 2000, President George W. Bush defeated Vice President Al Gore by the narrowest of margins with just 271 Electoral Votes – just one more than the 270 needed. President Bush actually received fewer popular votes than Vice President Gore in the General Election. Yet, under the Electoral College, he was elected as the 43rd President of the United States.

As the 2000 Presidential Election proved, every electoral vote counts big. And, to decide the electoral votes, every vote in every state (along with the District of Columbia) counts big. While over 100 million votes were cast in the 2000 Presidential election, only 366 votes in New Mexico separated the winner of its 5 Electors and the Presidency from the loser.

Mr. Evans is the chair of the Financial Institutions practice at the law firm of McKenna, Long, and Aldridge LLP. He also served as outside counsel to the Speakers of the 104th – 109th Congresses of the United States. His weekly column debuts every Friday on That’s Just Peachy.

One Response to How Presidents Are Elected – Really

The National Popular Vote bill is perfectly constitutional. It preserves the constitutionally mandated Electoral College and state control of elections. It changes the way electoral votes are awarded by states in the Electoral College, instead of the current 48 state-by-state winner-take-all system (not mentioned in the U.S. Constitution, but since enacted by 48 states). It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in ALL 50 STATES AND DC would get the 270+ electoral votes from the enacting states. That majority of electoral votes guarantees the candidate with the most popular votes in ALL 50 STATES AND DC wins the presidency.

National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate.

And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

With National Popular Vote, every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every vote is equal, the campaign must be run in every part of the country.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.